GPES License

OPEN CHANNEL SOFTWARE, INC.
SOFTWARE DISTRIBUTION AGREEMENT
Noncommercial U.S. Public Release

THIS SOFTWARE DISTRIBUTION AGREEMENT IS A LEGALLY BINDING AGREEMENT BETWEEN USER ("RECIPIENT") AND OPEN CHANNEL SOFTWARE, Inc. ("OCS"). By accepting the Software identified above, RECIPIENT acknowledge that RECIPIENT has read this Agreement, understands it, and agrees to be legally bound by its terms and conditions. If RECIPIENT does not agree to these terms and conditions, promptly return the software unused.

Granted Rights

1. For non-commercial, private internal purposes solely by RECIPIENT, RECIPIENT is granted and may exercise a royalty-free, non-exclusive license, subject to third party intellectual property claims, to reproduce, modify, display, and perform the Software provided to RECIPIENT with or without Modifications, and/or as part of another work provided that RECIPIENT agrees to and actually complies with all terms and conditions in this License on an ongoing basis. The exercise of any of the granted rights by RECIPIENT signifies acceptance of this License.

2. Specifically regarding the right to reproduce, RECIPIENT may copy the Software only for non-commercial, private internal purposes to the extent necessary to exercise the other specific non-exclusive rights identified above and provided:
   1. All notices and disclaimers remain with the Software and,

   2. RECIPIENT does not identify the Software as RECIPIENT'S product or property and,

   3. RECIPIENT includes the following notices:

      Copyright U.S. Government as represented by the Administrator of the National Aeronautics and Space Administration

      This software may be used, reproduced, and provided to others only as permitted under the terms of the agreement under which it was acquired from the U.S. Government. Neither title to nor ownership of the software is hereby transferred. This notice shall remain on all copies of the software.

3. Specifically regarding the right to modify the Software, "Modifications" mean any addition or deletion by RECIPIENT from the substance or structure of either the original Software or any previous modifications. RECIPIENT may make Modifications to the Software only for non-commercial, private internal purposes and provided RECIPIENT agree also:
   1. Not to sell, offer for sale, bundle Software with other software or equipment in a sales activity or otherwise market the Software or Modified Software without written permission of OCS;

   2. Not to modify the Software such that the Modifications constitute an infringement of another or others rights;

   3. Not to assert ownership to the Software as modified;

   4. To maintain and not alter or remove this License and all notices or disclaimers that accompany the Software during the preparation or as a result of the Modifications; and

   5. To provide with all Modifications and modified Software, sufficient information such that OCS knows how and when RECIPIENT changed the Software.

4. RECIPIENT may exercise the rights with respect to the Software in original or modified form in legally permissible applications.

5. RECIPIENT may not distribute or otherwise grant rights to another or others with respect to the Software or Modifications. Any such attempt or use for public or commercial purposes will automatically terminate the rights granted under this License.

   Term

6. This License and the rights granted hereunder will commence on the date the Software is electronically or physically delivered. This License and the rights granted hereunder will terminate automatically if RECIPIENT fail to comply with all of the terms and conditions of this License or within ninety (90) days of the dispatch of a notice from OCS.

7. If RECIPIENT modifies the SOFTWARE, RECIPIENT will provide OCS the complete source code of the modified version and will grant the U.S. Government a non-exclusive, royalty free, worldwide license in the modified version to reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly for U.S. Governmental purposes.

   USER ASSUMES THE RISK

8. RECIPIENT ASSUMES ALL RISK AND RESPONSIBILITY FOR THE SELECTION, INSTALLATION, USE QUALITY, PERFORMANCE, AND RESULTS OBTAINED FROM THE SOFTWARE.

   WARRANTY DISCLAIMER

9. THE SOFTWARE IS PROVIDED "AS IS" WITHOUT ANY WARRANTY OF ANY KIND, EITHER EXPRESSED, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY THAT THE SOFTWARE WILL CONFORM TO SPECIFICATIONS, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND FREEDOM FROM INFRINGEMENT, AND ANY WARRANTY THAT THE DOCUMENTATION WILL CONFORM TO THE SOFTWARE, OR ANY WARRANTY THAT THE SOFTWARE WILL BE ERROR FREE. IN NO EVENT SHALL NASA BE LIABLE FOR ANY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF, RESULTING FROM, OR IN ANY WAY CONNECTED WITH THIS SOFTWARE, WHETHER OR NOT BASED UPON WARRANTY, CONTRACT, TORT , OR OTHERWISE, WHETHER OR NOT INJURY WAS SUSTAINED BY PERSONS OR PROPERTY OR OTHERWISE, AND WHETHER OR NOT LOSS WAS SUSTAINED FROM, OR AROSE OUT OF THE RESULTS OF, OR USE OF, THE SOFTWARE OR SERVICES PROVIDED HEREUNDER.

   RECIPIENT AGREES TO WAIVE ANY AND ALL CLAIMS AGAINST OCS, THE U.S. GOVERNMENT, THE U.S. GOVERNMENT’S CONTRACTORS AND SUBCONTRACTORS, AND SHALL INDEMNIFY AND HOLD HARMLESS THE U.S. GOVERNMENT AND THE U.S. GOVERNMENT’S CONTRACTORS AND SUBCONTRACTORS FOR ANY DAMAGE THAT RECIPIENT MAY INCUR FROM RECIPIENT’S PRIOR OR FUTURE USE OF THE PROVIDED SOFTWARE, INCLUDING ANY DAMAGES FROM PRODUCTS BASED ON, OR RESULTING FROM, THE USE THEREOF.

   IF FURTHER RELEASE OR DISTRIBUTION OF THIS SOFTWARE OR TECHNICAL DATA DERIVED FROM THIS SOFTWARE IS PERMITTED, RECIPIENT AGREES TO OBTAIN THIS IDENTICAL WAIVER OF CLAIMS, INDEMNIFICATION AND HOLD HARMLESS AGREEMENT WITH ANY ENTITIES THAT ARE PROVIDED WITH THE SOFTWARE OR TECHNICAL DATA DERIVED FROM USE OF THE SOFTWARE.

   LIABILITY DISCLAIMER

10. IN NO EVENT SHALL THE UNITED STATES GOVERNMENT, NASA, OPEN CHANNEL SOFTWARE, INC., OPEN CHANNEL FOUNDATION OR ANY OF THEIR OFFICERS, AGENTS, OR EMPLOYEES BE LIABLE TO RECIPIENT OR ANY OTHER DISTRIBUTEE OR USER OF THE SOFTWARE FOR ANY DAMAGES OF ANY KIND WHATSOEVER, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, GENERAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH EITHER THE SOFTWARE, ITS DISTRIBUTION, USE OR PERFORMANCE, OR THIS AGREEMENT, AND WITHOUT REGARD TO WHETHER ANY CLAIM FOR DAMAGES IS BASED IN CONTRACT, WARRANTY OR TORT, OR ARISES UNDER STATUTE, COMMON LAW, OR OTHERWISE, OR WHETHER INJURY WAS SUSTAINED BY PERSONS, PROPERTY, OR OTHERWISE, OR WHETHER LOSS WAS SUSTAINED FROM THE LOSS OF USE, DATA, INFORMATION, OR PROFITS. OCS SPECIFICALLY DISCLAIMS ANY AND ALL LIABILITY FOR DAMAGES OF WHATSOEVER KIND AND NATURE CAUSED BY THE INABLITY OF THE SOFTWARE TO OPERATE EFFICIENTLY OR EFFECTIVELY AFTER DECEMBER 31, 1999.

    RECIPIENT AGREES TO WAIVE ANY AND ALL CLAIMS AGAINST THE U.S. GOVERNMENT, THE U.S. GOVERNMENT'S CONTRACTORS AND SUBCONTRACTORS, AND SHALL INDEMNIFY AND HOLD HARMLESS THE U.S. GOVERNMENT AND THE U.S. GOVERNMENT'S CONTRACTORS AND SUBCONTRACTORS FOR ANY DAMAGE THAT RECIPIENT MAY INCUR FROM RECIPIENT'S PRIOR OR FUTURE USE OF THE PROVIDED SOFTWARE, INCLUDING ANY DAMAGES FROM PRODUCTS BASED ON, OR RESULTING FROM, THE USE THEREOF.

    USER'S WARRANTY: COMPLIANCE WITH EXPORT CONTROLS

11. RECIPIENT warrants that RECIPIENT will do all things necessary to comply with the current United States Export Administration and any other laws and regulations of the United States as they may apply to the Software and all other things derived from the Software. RECIPIENT further acknowledge that RECIPIENT is subject to the laws and regulations of the United States controlling the export of certain technical data, computer software, laboratory prototypes, and other commodities ("Technical Data"). RECIPIENT further agree to comply with these laws and regulations as they apply at the time of exporting any Technical Data, as they may be revised and modified at various times. The Software is intended for domestic use and distribution only and shall not be made available to anyone outside of the United States without the written agreement of OCS. In addition, within the United States, the Software shall not be made available to foreign persons (as defined by 22 CFR §120.16). Furthermore, the Software shall not be provided to any person or entity listed on any "denied parties/persons" list (including the Office of Foreign Assets Control, Specially Designated Nationals and Blocked Persons; Office of Foreign Assets Control, Changes to List of Specially Designated Nationals and Blocked Persons; Office of Defense Trade Controls, List of Debarred Parties; Bureau of Export Administration, List of Denied Persons; Bureau of Export Administration, Entity List). RECIPIENT certifies that it is not a foreign person (as defined by 22 CFR §120.16) and is not listed on any of the aforementioned lists. Violations of these regulations are punishable by fine, imprisonment, or both. OCS neither represent that a license shall be required nor that, if required, it shall be issued. RECIPIENT warrant and agree that prior to any such transfer or exportation of Technical Data to Foreign Nationals, RECIPIENT will obtain and all necessary export licenses, authorizations, or permits as required by U.S. law or regulation.

    REPORTING ERRORS

12. Any problems or questions associated with the Software should be directed to the Open Channel Software, and not to the author or developer, in order that errors may be documented and referral services coordinated by Open Channel Software.

    MISCELLANEOUS

13. RECIPIENT ACKNOWLEDGE that RECIPIENT has read this Agreement, understands it, and agrees to be legally bound by its terms and conditions. RECIPIENT further agrees that it is the complete and exclusive statement of the Agreement between us, which supersedes any proposal or prior agreement, oral or written, and any other communication between us relating to the subject matter of this Agreement.

Accepted and Agreed:

Authorized Signature:_____________________________________________

Printed Name:___________________________________________________

Nationality: ________________________________________________

Company Name: ________________________________________________

Address: ______________________________________________________

City, State Zip: _________________________________________________

Date:__________________________________________________________

Please sign and return one copy of this license to Open Channel Software, Inc.

You must also submit an online request for GPES through the Open Channel Website.
Requests for software cannot be processed unless we have BOTH an online request and a signed license agreement.

GPES License